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Salazar v. Buono

By Marci A. Hamilton, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University
So often, cases at the Supreme Court disappoint, because the media has followed the backstory, as it is called, but the Court has in its sights more technical issues. Its recent decision in Salazar v. Buono is further evidence of this phenomenon.

It is understandable why the media would focus on the backstory - a cross was erected by the Veterans of Foreign Wars 70 years ago to honor World War I fallen soldiers. It is located in the on Sunrise Rock in the Mojave National Preserve in San Bernardino County, California. In 2001, Frank Buono, filed suit against the Secretary of the Department of the Interior on the grounds that the cross violates the separation of church and state. The District Court held it was unconstitutional and entered an injunction ordering that it not be displayed. This is when it gets entertaining, because Congress enters the picture.

First, Congress designates the cross as a national memorial. Then it bars federal funds from being used to dismantle federal memorials. Then it enters into a "land transfer" deal with the VFW, which provides that a small plot surrounding the cross's base is to become private while the federal government gets a small piece of the VFW's land. The District Court ruled that the land transfer was unconstitutional and the Ninth Circuit affirmed twice.

If this order of events sounds familiar, it should. After the Ninth Circuit declared that the inclusion of "under God" in the Pledge of Allegiance violated the separation of church and state, members fell over each other rushing outside the Capitol to place their hands over their hearts and loudly recite the full Pledge of Allegiance, "under God" and all. When the Elk Grove Unified School Dist. v. Newdow case got to the Supreme Court, the Justices granted certiorari, but then apparently got cold feet, because they avoided the Establishment Clause issue entirely and decided the case on a dubious interpretation of state law and standing doctrine.

By the Rev. Barry W. Lynn. Lynn is executive director of Americans United for Separation of Church and State.
The Supreme Court's decision today in Salazar v. Buono, the California desert cross case, knocks another brick out of the wall of separation between church and state. It's an unfortunate ruling that could have unintended consequences.

The high court essentially signed off on a complicated scheme involving a land swap that was designed to keep a cross erected on federal land at the Mojave National Preserve. Supposedly, the land under the cross is now private property, so there's no longer a constitutional violation.

This ruse - trading the ground under the cross for a parcel of land elsewhere - was cooked up by Congress as part of a ploy to keep the cross up. Rather than do the hard work of enforcing the separation of church and state, the court majority seemed to largely say amen to this obvious sham.

The cross was erected on federal land by veterans of World War I who moved to the area in the 1930s. The veterans' desire to memorialize their fallen comrades was undoubtedly sincere, but that doesn't make it legal. They appropriated public land for a private, religious purpose - and the fact that the violation they spawned has existed for a long time doesn't make it less of a problem.

Congress' answer was to declare the cross a national memorial. This puts us in a strange place: the only national memorial to America's men and women who died in World War I is a cross - a symbol that fails to include Jews, Buddhists, atheists and others.

The Supreme Court ruled today that a cross displayed in the Mojave National Preserve, part of a lengthy legal battle, does not violate the First Amendment principle of the separation of church and state.

Ruling 5-4 in Salazar v. Buono, the majority concluded that the Latin cross, a part of a war memorial, did not amount to an endorsement of religion by the federal government.

"Here one Latin cross in the desert evokes far more than religion," Justice Anthony Kennedy wrote. "It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

As noted by the majority opinion, the cross was displayed in the preserve in 1934 atop Sunrise Rock "in a remote section of the Mojave Deseret." Private citizens have been largely responsible for maintaining the cross, Kennedy wrote.

Frank Buono, a retired Park Service employee, sued the government arguing that the presence of the Christian symbol on federal land violated the First Amendment. Federal courts ruled in Buono's favor. Congress then became involved, passing laws barring federal funds to be used to remove the cross, designating the cross a national war memorial and transferring interest in the land to the Veterans of Foreign Wars. A federal district court subsequently ruled that the Congress's actions were intended to keep the cross on Sunrise Rock, despite the federal court rulings.

The Supreme Court heard argument last Wednesday in Salazar v. Buono, an Establishment Clause challenge to the federal government's display of a Latin cross in the Mojave National Preserve. The Court's questions focused largely on esoteric procedural doctrine, and while it's always risky to predict the outcome of a case based on oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case - namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land. (The lower courts decided those issues in favor of the plaintiff in the first round of the case, and the Bush Administration chose not to seek Supreme Court review at the time. As a result, the Court now appears disinclined to revisit those rulings.)

But while the Supreme Court ultimately may pass on the loftier constitutional questions in Buono, Wednesday's argument did have some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg's suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn't honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."